Careful Ruling on Access to Cell Tower Data

HOUSTON (CN) – Uncle Sam doesn’t need a warrant to get records of all cellphones that pinged specific towers to try to identify a criminal, a federal judge ruled. “Earlier this year in Houston, a private security video recorded an unknown individual approaching a commercial business location on foot, holding a wireless device to his ear,” U.S. Magistrate Judge Stephen Smith wrote in a 10-page ruling Monday. The ruling continues: “A minute later he lowered the device from his ear, pausing to look at it before putting it in his pocket. He then entered the business, committed a crime, and fled the scene minutes later. The relevant portion of the video-recorded sequence is about 6 minutes long.” The government filed a sealed motion asking Smith to order seven service providers to release cell tower data from specific towers around the crime scene, around the time of the crime, pursuant to the Stored Communications Act. Because federal law enforcement does not have the suspect’s name or phone number, which it typically does have when asking for cell tower data, it hopes to identify him by comparing the video footage to the cell tower records and honing in on his number through a process of elimination. “The Government also seeks subscriber account information for the telephone numbers revealed by the cell tower log. The request does not seek precise location data, nor does it seek to track the movements of a particular cellphone over time,” Smith wrote. Smith granted the motion, but culled the window for data collection from one hour to 10 minutes. Though Smith made that decision a month ago, he waited until March 9 to explain his reasoning. Law enforcement collection of cellphone data is a hot issue that some observers believe is destined for a hearing before the Supreme Court. The 11 th Circuit ruled in June 2014 that police need a warrant to get cell tower data. The three-judge panel in Atlanta ruled that Quartavius Davis, whose cell tower data placed him near the scenes of six robberies, had a Fourth Amendment right to keep his whereabouts private. Davis’s records showed he was near the stores when they were robbed. He won his appeal of his conviction and sentence of 162 years in prison. Unsatisfied with the ruling, the government sought an en banc hearing before the circuit, which was held Feb. 24. The 5th Circuit took a different view in 2013, with a 2-1 ruling that determined “cell site records were ordinary business records of the provider in which the customer had no reasonable expectation of privacy,” according to Smith’s opinion. Cell tower data can include the originating and receiving phone numbers for calls, the date, time and length of the calls and whether the communication was a call or text. Smith gave a respectful nod to three rulings on the issue by his colleague, Corpus Christi federal magistrate Brian Owsley, the upshot of which was that cell tower records are protected by the Fourth Amendment, law enforcement needs a warrant to get them, and such requests are not authorized by the Stored Communications Act. But Smith said he must defer to the 5th Circuit. “The net effect is that the Fourth Amendment ground for Judge Owsley’s rulings on cell tower dumps has been cut away, at least for the time being, in this circuit,” Smith wrote. Orders letting police obtain cell tower records are sometimes called “cell tower dumps.” Smith also tackled the question of whether the Stored Communications Act allows “a single order compelling access to records from multiple accounts,” rather than the typical requests of records about a single account. The ACLU sent a brief to the 5th Circuit, arguing that the Stored Communications Act uses singular phrasing and frequently mentions records of a single subscriber. Smith was unpersuaded. “This argument is effectively refuted by the Dictionary Act, which instructs courts that ‘[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise, words importing the singular include and apply to several persons, parties or things; [and] words importing the plural include the singular,” Smith wrote. Though he sided with the government on the cell tower data issue, Smith was careful to note that his ruling does not pertain to cell site simulators that police use to mimic cell towers so a suspect’s phone will ping the device and allow police to track them.